Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.

MOORE v. BELT et al.

Civ. 16302.

Decided: February 16, 1949

E. Briggs Howorth and Walter R. Trinkaus, both of Los Angeles, for appellant. Fulcher & Wynn and Gibson, Dunn & Crutcher, all of Los Angeles, for respondent.

Appeal by plaintiff from a judgment for defendant Elmer Belt, a physician, entered on a verdict of a jury in an action for damages for alleged malpractice. It is not contended that the evidence is insufficient to support the verdict.

Appellant's assignments of error are: (1) the court erred in giving instructions requested by respondent and in refusing to give instructions requested by appellant, (2) the court erred in sustaining objections to questions asked the expert called by appellant for the purpose of establishing his qualifications, in sustaining objections to hypothetical questions asked the expert, in not permitting him to explain a “Yes” answer, and in sustaining objections to questions asked him on rebuttal which assumed facts developed by the defense.

The evidence germane to the first assignment of error will be related. Appellant went to Dr. Belt's office on June 7, 1944, for a cystoscopic examination. At the time he was a man 41 years of age. After giving the doctor a history, he was partially disrobed, the doctor palpitated his abdomen and examined his testicles. He was then taken to another room for further examinations and tests preparatory to the cystoscopic examination. He was disrobed and clothed with a surgical gown. His pulse and temperature were taken. A test was made of his hemoglobin. His lungs and teeth were examined. Samples of his urine were taken, tested, and found negative. His blood pressure was taken. A syphilis test was made. It was negative. A prostatic massage was performed and a sample taken of the prostatic secretion.

After a wait, appellant was taken to a cystoscopic examination room and assisted onto a table. The table was so constructed that he could be turned from a prone position to an erect standing position without being removed from the table. While on the table appellant could not see and did not know what was being done except what he could feel. A layman, called a technician, 26 years of age, in the absence of Dr. Belt, prepared appellant for instrumentation. The layman picked up a tray from a nurse in the next room. The tray contained an installator, swab, water tube, two syringes, a peroneal towel and a sheet. He washed appellant's male organ, injected an anesthetic therein and inserted a 1/414‘ stopper to hold the anesthetic in place. Dr. Belt took a cystoscope from a tray in another room and went into the examination room. A cystoscope is an instrument about twice the length of a fountain pen, with a diameter smaller than a fountain pen, made of copper and nickel plated, with the end turned up and a hollow shaft. It was lubricated with a nonoily lubricant. The layman removed the stopper. Dr. Belt introduced the cystoscope into the opening, inserted it through the organ into the bladder and observed the interior of the bladder. The ureter openings into the bladder and the interior of the bladder appeared normal in every respect. Catheters were inserted through the cystoscope into the bladder through both renal pelves and pushed through the ureter to the kidneys. The catheters had been threaded into the cystoscope by someone not named in the evidence. A specimen of urine was collected through the catheters into test tubes and when examined it was found that there was no bacteria or pus present. A dye solution was injected into each uretral catheter and X-rays taken while appellant was in a prone position and also while he was in a standing position and while instruments remained in his body. The catheters were withdrawn and the solution remaining in the ureter was allowed to trail to the bladder as far as the prostate level and X-ray pictures taken of the area. All X-ray pictures were negative.

Dr. Belt testified that: the examination showed appellant's urinary tract from the kidneys down to the prostate was in a normal condition; it was a text-book picture of normalcy; after the examination he told appellant that his genito-urinary system was negative. He testified that fever which develops an unusual time after a cystoscopic examination is not the normal reaction therefrom. Dr. Belt told appellant that if any reaction occurred at all it would occur within two hours. He also told him that the examination was entirely negative, that the blood count, hemoglobin, heart pulse and respiration were normal. Dr. Belt told him that his prostate, prostatic secretion and urine were normal, that his prostate was normal in size, shape and consistency, that his bladder was normal, that both his prostate and bladder were negative as to any pathological condition, that his kidneys and ureters were normal, that he was a textbook picture of perfection.

About 24 hours later—4:00 o'clock the next day—appellant began feeling odd. He began having chills about 8:00 o'clock that night. He had chills and fever all night and all the next day, June 9. On June 10 he received some medicines from Dr. Belt's office which he understood were sulfa drugs. He started to take the sulfa drugs the afternoon of June 10. He continued to have chills and fever on June 10 and 11. On June 11, Dr. Guth, an assistant of Dr. Belt, went to appellant's home, examined him and told him to continue taking the medicine. Appellant continued to have alternate chills and fever. His temperature became progressively higher, running to 105° about 10:00 p.m. on June 11. He was then taken to a hospital on the advice of Dr. Belt's assistant. The chills and fever continued. The sulfa drugs were discontinued on June 13 at 2:30 p.m. but the fever and chills persisted until June 14. He remained in the hospital until the afternoon of June 16.

While in the hospital appellant was attended by Dr. Ebert, another assistant of Dr. Belt. Appellant, while in the hospital, asked Dr. Ebert what was causing his severe chills and high fever. Dr. Ebert replied, “That's hard to say. Everyone knows you have an acute infection of the urinary passages, but I can't understand how it got there. But that is why you are being given the sulfa drugs and pyridium. These medicines are for infections of that kind.” Dr. Ebert, although still in the employ of Dr. Belt, was not called as a witness.

On June 27, when appellant was able to leave his home for the first time, he went to Dr. Belt's office. He was given a prostatic massage by Dr. Guth and samples of his urine were taken for tests. After the tests were completed, he asked Dr. Guth the results. Dr. Guth told him that the tests showed that he still had a 25% infection. Appellant was given prostatic massages by Dr. Guth until July 28, 1944. On each occasion Dr. Guth told him that he had an infection present in the urinary tract but that the amount was gradually decreasing so that at the time of his last visit the test showed only 10%. Dr. Belt was away from Los Angeles from June 9 to June 23. Sometime thereafter and while Dr. Guth was giving appellant a prostatic massage, Dr. Belt appeared and appellant said, “Dr. Belt, Dr. Guth just told me that I still have 10nfection present. I didn't have any infection when I came in here in June and I don't see why I should have any now.” Dr. Belt replied that 10% was within normal limits. Appellant then asked Dr. Belt what had caused the infection in the urinary tract and the severe chills and high fever. Dr. Belt replied, “To tell the truth, I don't know.” Dr. Belt did not deny having made this answer to appellant's query. Dr. Guth was in Wisconsin at the time of the trial. His deposition was not taken.

The expert called by appellant testified that the 24 hours between the time of the examination and the time appellant began to have chills and fever probably was an incubation period for bacteria introduced into the urinary tract in the preparation for, or in the making of the examination, that the introduction was evidently due to some defective condition of the instruments or carrying in from the opening of the meatus (the canal in the male organ), whose edges were not thoroughly cleansed, and that the treatment given in the hospital was for an infection of the urinary tract.

As we read the record, there is no evidence that either the stopper or the cystoscope or the catheters used in the examination were sterilized before insertion into appellant's body. Neither the lay technician nor Dr. Belt sterilized any one of them or saw any one of them sterilized. They assumed that they had been sterilized. No one testified that he sterilized any one of them. On the other hand, there is no direct evidence that they were not sterilized.

Appellant's contention is stated in his brief. He says, “(a) His genito-urinary system was in a healthy and normal condition on June 7, 1944, when he reported to respondent for a urological examination, every part of that system being free of infection of every kind and description. This was established by the records and testimony of respondent which showed that immediately prior to the cystoscopic examination and on the same date appellant was given various tests, including tests of his urine, prostatic secretion, blood, etc., all of which were negative and showed no infection present and, further, that the urological examination disclosed appellant's genito-urinary system to be in a healthy and normal condition. (b) About 24 hours after the cystoscopic examination had been completed by respondent, symptoms appeared showing that an infection had developed which the evidence established was within the confines of appellant's genito-urinary system. Appellant testified to the appearance of such symptoms approximately 24 hours after the examination. It was shown that 24 hours was the normal incubation period for a new infection of this type. And the fact that such infection, which did not exist immediately before the examination, did exist approximately 24 hours after the examination, was established by the uncontradicted admissions of respondent and his assistants, by the nature of the treatment given, and also by expert testimony offered through Dr. Webb. (c) This infection had been caused by infectious matter which had been carried into appellant's urinary tract during the urological examination. Proof of (a) and (b) give rise to this inference which is further and directly established by the expert testimony of Dr. Webb. (d) There was no issue raised regarding the professional skill or learning of the respondent. (e) The question involved was whether respondent or his employees or assistants were negligent in failing to effect and maintain proper sterilization for such examination. This negligence was established as a question of fact by proof of (a), (b), and (c), under the principles of Barham v. Widing, 210 Cal. 206, 291 P. 173, 174, and also by the inference of such negligence arising under the doctrine of res ipsa loquitur as announced in Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 [162 A.L.R. 1258].”

The evidence which has been related puts the case squarely within the doctrine of Barham v. Widing, 210 Cal. 206, 291 P. 173, 175. In that case the defendant, a licensed dentist, extracted the left lower molar tooth of the plaintiff. In order to operate, a local anesthetic was administered by means of a hypodermic injection of novocaine. The needle was twice inserted in the gum of the plaintiff at a point over the ramus or ascending prong of the left lower jaw bone near the diseased tooth. After five or six days, an infection of the gum and jaw developed. A physician testified that the locality of the primary infection was the point where the hypodermic needle had been inserted in the gum, that it “was the center of the abscess; it was deep, very deep, so that it must have been necessary that the infection was introduced * on a needle, or perhaps an unsterile solution, because the pus was found very, very deep”, and that, from his examination of the socket from which the tooth had been removed, the socket was not the seat of the infection. The plaintiff had judgment. On appeal, the defendant contended that “the judgment is not supported by the evidence, since there is a total absence of medical expert testimony to the effect that the operation and treatment of the patient in the extracting of the tooth did not conform to the standard accepted method of the profession in that vicinity”.

In affirming the judgment the court stated, 210 Cal. at page 213, 291 P. at page 176:

“The appellant asserts that the evidence is not sufficient to establish negligence on his part because there is no direct testimony that the needle or solution which was used in administering the anesthetic was unsterile; that a dentist, like a physician, is required to have and use only the degree of learning and skill which is ordinarily possessed by dentists of good professional reputation in that locality. This is the rule with respect to physicians. Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654. Undoubtedly the same rule applies to dentists. The jury was clearly instructed to this effect. It is equally true that cases which depend upon knowledge of the scientific effect of medicine, or the result of surgery, must ordinarily be established by expert testimony of physicians and surgeons. Perkins v. Trueblood, 180 Cal. 437, 181 P. 642. This rule, however, applies only to such facts as are peculiarly within the knowledge of such professional experts, and not to facts which may be ascertained by the ordinary use of the senses of a nonexpert. * [210 Cal. at page 214, 291 P. at page 176.] The judgment in this case must be supported, if at all, upon the theory of appellant's negligence in failing to sterilize his hypodermic needle and the mouth and gum of the patient before performing the operation of extracting the tooth. It is true that both the dentist and his nurse testified that the usual process of sterilization was followed. It is equally true that there is no direct evidence that he failed to sterilize either the needle or the surface of the flesh where it was inserted. Barham does state that he did not remember that the dentist sterilized his mouth or gum.

“ ‘Under the circumstances of this case there is a remote possibility that the infection developed from some cause other than the defendant's failure to sterilize the needle or the gum into which it was inserted, but the evidence is sufficient upon which to warrant the jury in finding that it was caused by his negligence in failing to follow these reasonable precautions in spite of his testimony to the contrary. The jurors were entitled to accept the solution to which these circumstances led them in preference, even, to the positive statements of the defendant and his nurse to the contrary. After the verdict of a jury had been fairly rendered, all the circumstances of the case, together with every reasonable inference which may be drawn therefrom, will be marshaled in support of the judgment. Because of the very subtleness of the origin and development of disease, less certainty is required in proof thereof. As the court says in the case of Dimock v. Miller, 202 Cal. 668, 671, 262 P. 311, 312:

“ ‘ “If * it is necessary to demonstrate conclusively and beyond the possibility of a doubt that the negligence resulted in the injury, it would never be possible to recover in a case of negligence in the practice of a profession which is not an exact science.”

“ ‘It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. *

“ ‘In this case no question is raised regarding the professional skill of the dentist. It is conceded that he was reasonably learned and skillful in his profession. But it is asserted that he was negligent in failing to sterilize the hypodermic needle and the gum into which he inserted the instrument. There is no conflict regarding the fact that infection of the jaw caused the injuries to Barham. It is conclusive that this infection developed within a few days after the operation on the ramus of the jaw at just the point where the needle was inserted, and not in the socket from which the tooth had been removed. *

“It was not necessary for any dentist or physician to state that the conduct of the defendant was negligent or in conflict with the usual established practice of the profession in that vicinity to administer a local anesthetic for the purpose of extracting a tooth without sterilizing the needle or the flesh into which it is inserted. The court will take judicial knowledge of the necessity to use ordinary care to procure sterilization under such circumstances. This case was tried upon the theory that everyone concerned recognized this duty. We are, therefore, of the opinion that the evidence will support the judgment in this regard.' ” 210 Cal. 216, 291 P. 177. See, also, McBride v. Saylin, 6 Cal.2d 134, 56 P.2d 941; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 12 P.2d 744, 13 P.2d 905; Thomsen v. Burgeson, 26 Cal.App.2d 235, 79 P.2d 136; Anderson v. Stump, 42 Cal.App.2d 761, 109 P.2d 1027; Mastro v. Kennedy, 57 Cal.App.2d 499, 504, 134 P.2d 865; Dean v. Dyer, 64 Cal.App.2d 646, 149 P.2d 288; Clemens v. Smith, 170 Or. 400, 134 P.2d 424; Drakes v. Tulloch, 220 Mass. 256, 107 N.E. 916; Hafemann v. Seymer, 195 Wis. 625, 219 N.W. 375; Swanson v. Hood, 99 Wash. 506, 170 P. 135, 137.

In the Barham case a psysician testified as an expert, not that the conduct of the dentist was negligent or in conflict with the degree of care and skill ordinarily exercised by dentists in that vicinity, but simply to establish that the infection in the plaintiff's jaw was caused by an unsterile hypodermic needle or by an unsterile solution. In the case at bar, appellant's expert testified merely for the purpose of establishing that the infection in appellant's urinary tract was caused by an unsterile instrument or that the parts of appellant's body into and through which the instruments were inserted had not been completely sterilized. The purpose of the expert testimony was precisely the same in each case.

There is no difference between the facts of the Barham case and the facts of the case at bar. In the Barham case a needle was inserted into the gum and a solution injected. Five or six days later an infection appeared. The point of infection was the place where the needle was inserted. It was held that, without expert testimony, the jury could infer negligence. Here, instruments were inserted into the male organ and the urinary tract and a solution injected. Twenty-four hours later an infection appeared. The point of infection was the urinary tract. The jury, without expert testimony, could infer negligence. The evidence in the present case makes for a stronger inference of negligence than that in the Barham case. In that case there was no evidence that the gum was not infected at the time the needle was inserted and the solution injected. Here the evidence—with the exception of the opinions of two defense experts which were contrary to the testimony of Dr. Belt that appellant's genito-urinary system was negative—is without conflict that the urinary tract was in a healthy and normal condition and free from infection at the time the instruments were inserted and the solution injected. In the Barham case the infection did not appear until five or six days after the operation. Here the infection appeared about 24 hours after the examination.

With the evidence stated before the jury, the court at the request of respondent gave the following instructions: (1) “Negligence upon the part of a physician is never to be presumed, and in the absence of expert testimony to the contrary, it is to be presumed that a physician possesses and has exercised the requisite degree of skill and care in examining a patient.” (2) “In determining the question of whether the defendant was guilty of negligence as alleged in the complaint you cannot and must not set up a standard of your own but must be governed in that regard solely by the testimony of expert witnesses who have appeared and testified in this case.” Under these instructions the jury was not permitted to determine for themselves that failure to properly sterilize the instruments inserted into the appellant's body or failure to properly sterilize the parts of the body through which the instruments were inserted, or both, was negligence. Failure on the part of a physician in either of these respects is negligence as a matter of common knowledge. There is no law, as applied to the facts of this case, which requires that the jury in determining those questions be governed solely by the testimony of expert witnesses. The practical effect of these instructions was to direct the jury to return a verdict for the respondent. An instruction is prejudicially erroneous which excludes an issue that is supported by evidence. Pierce v. Paterson, 50 Cal.App.2d 486, 490, 123 P.2d 544.

The court refused to give the following instructions requested by appellant:

(1) “In determining whether defendant's learning, skill and conduct fulfilled the duties imposed on him by law, as they have been stated to you, you are not permitted to set up arbitrarily a standard of your own. The standard, I remind you, was set up by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing, in the same locality at the same time. It follows, therefore, that except as hereinafter explained the only way you may properly learn that standard, is through evidence presented in this trial by physicians and suggeons called as expert witnesses.

“However, there is this exception to the rule just stated; when it is a matter of common knowledge that danger is involved in certain conditions or in a failure to maintain certain conditions or to take certain precautionary measures, as, for instance, failure to perform the commonly known duties of cleanliness or sterilization, expert testimony is not required to establish such a fact, but it may be judicially noticed as a part of that fund of common knowledge shared by us with our fellow citizens generally.

“This exception may be otherwise stated as follows: When it is common knowledge that an event or a circumstance that has happened to or developed in a patient is of the kind that ordinarily does not occur in the absence of negligence on the part of the physician attending him, the question whether or not the condition was caused by negligence may be decided from the general circumstances as shown by the evidence and in the light of common experience and reason.” (This is California Jury Civil Instruction, 3d Ed. § 214–B. See, 1948 Pocket Parts.)

(2) “If you believe from the preponderance of the evidence that defendant, Elmer Belt, or any of his agents or employees, negligently used or employed either unsterilized instruments or solutions in the examination of the plaintiff or in the injecting into him of such solutions and that as the proximate result thereof infection was introduced into plaintiff thereby injuring him, plaintiff is entitled to recover from defendant, Elmer Belt, his damages herein in such sum as in your judgment, considering all of the evidence, will justly compensate him for any damage you believe him to have sustained as the proximate result thereof.” In Pierce v. Paterson, 50 Cal.App.2d 486, 489, 123 P.2d 544, 546, the court quoted with approval from Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350, as follows: “ ‘It is well settled that a physician and surgeon cannot be held to guarantee the results of his professional services. “However, it is equally well settled that in undertaking a treatment of a patient the practitioner impliedly contracts and represents, not only that he possesses the reasonable degree of skill and learning possessed by others of his profession in the locality, but that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed; and that if injury is caused by a want of such skill or care on his part, he is liable for the consequences which follow. Houghton v. Dickson, 29 Cal.App. 321, 155 P. 128; Nelson v. Painless Parker, 104 Cal.App. 770, 286 P. 1078; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654; Ley v. Bishopp, 88 Cal.App. 313, 263 P. 369; Patterson v. Marcus, 203 Cal. 550, 265 P. 222.” ’ ” (Italics added.) Appellant does not contend that respondent did not have the requisite knowledge and skill. His contention is that respondent was negligent in preparing for and making the examination; that there was no proper sterilization. Where the evidence conflicts, each party is entitled to have the law given to the jury which is applicable to his theory of the case and the testimony of his witnesses. Kelley v. City and County of San Francisco, 58 Cal.App.2d 872, 876, 137 P.2d 719; Buckley v. Shell Chemical Co., Ltd., 32 Cal.App.2d 209, 216, 89 P.2d 453; Dowdall v. Gilmore Oil Co., Ltd., 18 Cal.App.2d 1, 5, 62 P.2d 1051; Renton, Holmes & Co. v. Monnier, 77 Cal. 449, 455, 19 P. 820. This injunction is not met when the instructions remove that theory from consideration of the jury. Morrow v. Mendleson, 15 Cal.App.2d 15, 21, 58 P.2d 1302. It is the duty of the court to give instructions expounding the law on every reasonable theory of the case finding support in the evidence. Megee v. Fasulis, 65 Cal.App.2d 94, 101, 150 P.2d 281.

The evidence, without the testimony of experts, was sufficient to warrant the jury in finding that the infection was caused by the negligence of respondent. It was, therefore, prejudicial error to give the two instructions requested by respondent and to refuse to give the two instructions requested by appellant.

We are of the opinion that appellant's second assignment of error is well taken and that he was unduly restricted in the examination of the expert whom he called. It would serve no purpose to enumerate the numerous instances in which objections were sustained to questions asked for the purpose of qualifying the witness as an expert. It will suffice to state the applicable rule of law. “There can be no doubt that a party producing an expert witness has the right to question him as to his experience in the particular matters concerning which he is to be examined, not only for the purpose of establishing the competency of the witness to the satisfaction of the court, but also for the purpose of making plain the strength of the witness' grounds of knowledge and the reason for trusting his belief.” Salmon v. Rathjens, 152 Cal. 290, 299, 92 P. 733, 737; see, also, Eble v. Peluso, 80 Cal.App.2d 154, 181 P.2d 680. The weight to be given the testimony of the expert by the jury depends in great measure upon the knowledge and experience he shows in answers to questions relating to his qualifications. De Freitas v. Town of Suisun, 170 Cal. 263, 267, 149 P. 553. After determining that the witness was qualified as an expert, the court limited appellant to one hypothetical question. Objections were sustained to other hypothetical questions relevant to the inquiry. Code of Civil Procedure, section 2044, provides that “the parties may put such pertinent and legal questions as they see fit.” This rule is subject to the provision that: “The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth, as may be; *” and “The court, however, may stop the production of further evidence upon any particular point when the evidence upon it is already so full as to preclude reasonable doubt.” The questions to which objections were sustained were pertinent and legal and appellant had not produced any evidence on the points. The questions should have been permitted. On cross-examination appellant's expert was compelled to answer “Yes or No” to a question asked by the cross-examiner. He answered “Yes.” On redirect examination appellant asked the witness to explain the “Yes” answer. An objection was sustained. The explanation should have been allowed. When a question calls for an answer of either “Yes” or “No”, the witness is ordinarily permitted to explain the answer. 58 Am.Jur. 321, sec. 574; Webber v. Park Auto Transp. Co., 138 Wash. 325, 244 P. 718, 47 A.L.R. 590.

Appellant, in rebuttal, called his expert to the stand and asked him a hypothetical question which assumed facts developed by the defense. An objection to the question was sustained, apparently on the ground that it did not assume as true the very facts in issue—i.e., that the instruments, the solution, and the parts of appellant's body had been sterilized,—facts which had been assumed in the hypothetical questions propounded by respondent to his experts. The court should have permitted the witness to answer. Appellant had a right to rebut any one or more of the facts or opinions developed by the defense. The circumstance that a hypothetical question does not include all of the evidence in the case does not make the question objectionable. The question may be framed upon any theory of the questioning party which can be deduced from the evidence, and the statement may assume any facts within the limits of the evidence, upon which the opinion of the expert is desired, and may omit any facts not deemed by the questioner material to the inquiry. In re Guardianship of Jacobson, 30 Cal.2d 312, 323, 324, 182 P.2d 537; Alward v. Paola, 79 Cal.App.2d 1, 9, 179 P.2d 5; Mirich v. Balsinger, 53 Cal.App.2d 103, 116, 117, 127 P.2d 639. Considerable latitude must be allowed in the choice of facts as the basis of hypothetical questions. Dameron v. Ansbro, 39 Cal.App. 289, 296, 178 P. 874.

Judgment reversed.

I dissent. The theory of the majority opinion, as I understand it, is the following: Dr. Belt testified that the cystoscopic examination did not disclose an infection in the urinary tract; plaintiff developed an infection a short time after the examination and it was conclusively proved that the infection was in the urinary tract; these facts were sufficient to establish as a matter of common knowledge that the infection was a new one that had been introduced during the examination; and that the jury could have determined as a matter within common knowledge that the methods and technique of defendant, including the precautions that were taken to prevent infection, were not such as were usually employed by competent urologists practicing in the vicinity. The majority opinion then concludes that it was error to instruct that the jury was to be governed by the expert testimony in deciding the ultimate question whether defendant failed to exercise the required degree of judgment, skill, and care, and that it was also error to refuse to instruct that expert testimony is not required to prove matters that are of common knowledge.

I do not agree that we may assume as an established fact that the infection was in the urinary tract. That was a question for medical experts and the evidence was conflicting. I do not agree that if the infection was in the urinary tract it would follow as a matter of common knowledge that it was a new infection. That, too, was a question for medical experts and the evidence on the point was conflicting. I do not agree that if a new infection manifested itself in the urinary tract after the examination the jury could have inferred from that fact, and as a matter of common knowledge, that its occurrence was due to negligence on the part of defendant. In other words, it is my opinion, contrary to that of my associates, that even if a new infection was introduced during the examination it was a question for medical experts whether the methods and technique of defendant in the examination were those commonly employed by competent urologists practicing in the vicinity, which was the test to be applied to defendant's conduct. Consequently I am of the opinion that the jury was properly instructed.

I would agree with the views of the majority opinion if a sponge had been found in plaintiff's body, instead of an infection. An understanding of the phenomenon of the appearance of a sponge in a patient's body after an operation is of course within the recognized scope of the lay intelligence. The reverse is true with respect to the occurrence of infection. There is a correspondingly wide difference between my own views and those of my associates.

My associates rest their opinion, in part, upon what appears to me to be a clearly unwarranted assumption that the point of the infection was the urinary tract. This was one of the chief subsidiary issues in controversy, upon the determination of which the ultimate issue of defendant's liability might turn. The majority opinion appears to rely heavily as the basis for the assumption, upon statements attributed by plaintiff to defendant's employees, Dr. Ebert and Dr. Guth, that the infection was in the urinary tract. No doubt the admissions would have supported a finding that the infection was in the urinary tract but they were not, of course, conclusive upon that point. They were in fact only unsworn expressions of medical opinions. They were to be weighed against the testimony of the experts who expressed contrary opinions, and they were to be considered and weighed in the same manner as if they had been stated from the witness stand. In other words, the question whether the infection was in the urinary tract remained one to be determined from the opinions which the experts expressed, including those of Dr. Ebert and Dr. Guth. In reality, if the jury had believed that the infection was in the urinary tract that belief would have been based upon the medical testimony of Dr. Webb, the professional opinions of Drs. Ebert and Guth, and those of the experts who thought it was an old infection. If they had believed the contrary it would have been because they relied upon the opinions of defendant and his experts to be referred to later that the infection was not in the urinary tract. In either case they would have been governed by the expert opinions expressed, although those of Drs. Ebert and Guth were not given under oath. It is thus apparent that the admissions of the two doctors did not remove the question as to the location of the infection from the sphere of expert knowledge.

The admissions as to the location of the infection were not admissions of negligence, nor were they admissions that the infection had been introduced during the examination. In Markart v. Zeimer, 67 Cal.App. 363, 227 P. 683, one of the defendant physicians had stated that they had performed a wrong operation on the plaintiff; that they had injured a cord as a result of which plaintiff lost one of his testicles; that it was a “mis-operation.” Of these admissions the court said, 67 Cal.App. at page 371, 227 P. at page 685: “An admission to be sufficient must be and admission of negligence or lack of skill ordinarily required for the performance of the work undertaken. This ‘wrong operation’ may have been deemed right at the time it was performed. * These admissions, therefore, are not admissions that the operation complained of was not performed with reasonable care, or that the defendants did not possess and use that reasonable degree of learning and skill which was ordinarily possessed by members of their profession in good standing practicing in their vicinity.” In Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698, plaintiff had been injured by the injection of alcohol into a sciatic nerve and his physician had admitted that he should not have injected the alcohol into the nerve; that he had thereby injured the nerve and blocked the circulation. In holding this admission to be insufficient to send the case to the jury the court quoted with approval from Markart v. Zeimer stating, 105 Cal.App. at page 710, 288 P. at page 701: “The admission in question went no further than an expression based on the results and is of no value in showing whether or not ordinary skill was used in the first place.” The statements of Dr. Ebert and Dr. Guth were only admissions of the existence of an infection in the urinary tract. They were not admissions as to how the infection came to be there; far less were they admissions that it was introduced during the examination or that defendant had been negligent in any respect.

Inasmuch as the statements of the doctors Ebert and Guth were not sufficient to support a finding of negligence, plaintiff was obliged to rely upon his expert testimony to prove negligence. Proof of the existence of an infection in the urinary tract, while an essential factor in establishing defendant's negligence, was by no means the determinative fact. If it was sufficiently established by the admissions, the critical and strictly medical question would remain whether or not it was a new infection. As will be disclosed, there was substantial evidence tending to prove that it was a flare-up of an old infection, and there was no evidence upon which the jury could have determined that it was a new one, except the expert testimony given by Dr. Webb. There is no tenable theory of negligence, nor is any urged, which does not proceed from the premise that a new infection was introduced during the examination. Plaintiff's expert, Dr. Webb, answering a hypothetical question, expressed the opinion that the infection was in the urinary tract and was a new infection introduced during the examination. He was not questioned as to whether, in his opinion, the methods and technique employed by defendant conformed to the practice of competent urologists and he expressed no opinion on that point. Plaintiff relied upon Dr. Webb's opinion that it was a new infection and contended that from this premise an inference could be drawn that defendant did not employ the proper degree of judgment, skill, and care. He was given the full benefit of this contention by an instruction which will be presently discussed. Although there was a conflict of professional opinion whether the infection was in the urinary tract, I shall not press the point further. I shall, however, stress the testimony that it was not a new infection. Dr. Donald A. Charnok, testifying for defendant, in answer to a hypothetical question stated his opinion that plaintiff was suffering from an existing low grade infection in the lower urinary tract. Dr. Charles Allen Graves, a witness for defendant, testified that in his opinion plaintiff suffered from periodic infections of the urinary tract prior to the date of the examination, “as the history shows pus cells in existence in the tract as far back as the history goes.” Dr. J.J. Crane, another of defendant's experts, testified that in his opinion plaintiff was not suffering from a low grade infection of the urinary tract, but that if an infection was present it would have been in the genital tract, involving the prostate. Dr. Crane was of the opinion that the infection was most likely caused by influenza or an upper respiratory inflammation, or by a sinus infection. Dr. Andrews, a pathologist, testified that he made a laboratory examination of a culture taken June 12th, five days after the cystoscopic examination; and that on June 14th, and again on June 19th the results of the laboratory tests showed there was no infection of the urinary tract. Dr. Belt, testifying in his own behalf, was of the opinion that plaintiff had a fever of unknown origin, possibly coming from an infection of the upper respiratory tract, involving the lungs, sinus or throat. As stated in their opinions, all the experts took into consideration the medical history of plaintiff, both before and after the examination, and defendant's experts considered the methods of sterilization and other technique employed by defendant. They stated fully the reasons for their opinions. In the hypothetical questions plaintiff's medical history, both before and after the examination, was stated. The following are a few of the facts in the medical history: Plaintiff had suffered pains in the lower abdomen over the bladder above the pubic arch, and it radiated upward to the right and left; it had first appeared some eight years previously, at which time he suffered aurethral discharge which under treatment was identified as a mixed non-venereal infection; he had suffered from the same pains off and on ever since; he had had his appendix removed some two years before the cystoscopic examination; because of the continuing pain he had had an examination of the prostate which developed nothing wrong, although the secretion contained dead sperm only; he was required to get up at least once, sometimes twice at night, and had had three spells of pain within the last three months; he had had prostatic treatments by massage and had taken vercolate which increased the pain; intercourse if psychologically prolonged or often repeated brought on the pain; he had had lots of sinus trouble since 1920; his left testis was small and under-developed and tender to the touch; he was sent by his physician to Dr. Belt in the hope that the source of his trouble would be discovered but it was not discovered; after the operation he developed chills and fever, was taken to the hospital the fourth or fifth day, had a temperature of 102.8, having taken sulfathiazol for two days; urinalysis and blood count were normal, and the urinalysis showed no infection present; a blood culture was taken June 12th and after seven days showed no growth of bacteria; there was no complaint of burning or bladder pain and the hospital chart showed the urine clear at all times; a prostate massage on June 21st showed 15 per cent pus content which by July 28th was reduced to 5 per cent, with the urine still negative; on June 14th a smear of the urethra revealed no gram-negative intro or extra cellular diplococci. There was no burning or urination or bladder pain, and no hematuria.

The opinions of the experts and the reasons for them clearly showed that they were based upon facts contained in the statement of the medical history. Each expert called attention to facts which he relied upon as support for the opinions he expressed. I am certain that I have no knowledge whether the ailments from which plaintiff had suffered, the symptoms he had manifested, his reaction to the treatment he had received, the history of his illness after the examination, his reaction to the treatment then received, and the results obtained by pathological examinations and analyses furnished a sound and reasonable basis for the opinions of the physicians that the infection which developed after the examination was not a new infection. I must say that they all sound intelligent and logical to me. I do not know how any trier of fact could determine which opinion or set of opinions was entitled to the greatest weight except by an appraisal of the competence, judgment, and reliability of the several experts when they appeared as witnesses before him. If the questions answered by the experts were within the field of scientific knowledge the jurors who heard the testimony would have to be governed in their determinations by the expert testimony which appeared to them to be the most convincing.

The majority opinion necessarily rests upon one of two theories. Either the jurors competent to answer the hypothetical questions which were propounded to the experts or were competent to determine the question of defendant's negligence without taking into consideration any of the facts of plaintiff's medical history.

If the jury had taken into consideration the medical history, would their conclusions have been within the field of medical science, or based upon facts which are of common knowledge? Were the jurors competent to answer the hypothetical questions? It is clear that their conclusions as to whether the infection was a new one would necessarily have consisted of opinions that could be reached intelligently only by competent and informed physicians. Since it must be conceded that the jurors were not competent to answer questions requiring special skill and knowledge in the field of medicine, it would follow that it would have been improper for them to base their conclusions upon facts which would be of no significance except to the medical expert. Should they then have disregarded altogether the history of plaintiff's previous ailments and treatment, the recurrent pains he had suffered in the abdominal region, and all the other factors that were stated in the several hypothetical questions propounded to the experts? In other words, should they have ignored the particular individual involved and assumed that all cases are alike? Should they have proceeded on the simple theory that since no infection was known to exist in plaintiff's urinary tract prior to the examination, and plaintiff developed a high fever after the examination, which indicated an infection somewhere in his system, it was a matter of common knowledge that it must have been introduced into the urinary tract in the course of the examination, and therefore must have been a new infection and not a flare-up of an existing infection? The majority opinion necessarily gives an affirmative answer to the last of these questions in holding there was sufficient evidence of negligence without plaintiff's expert testimony and that it was error to instruct that the jury should be governed by the expert testimony. I cannot agree that the condition of the patient, before and after the examination, was all the jury had to consider nor that the cause of the infection could be determined upon the basis of supposed common knowledge. I fail to see how an intelligent conclusion upon the subject could be reached by a lay jury when no reputable or responsible physician would undertake to make a diagnosis as to whether it was a new or an old infection without first obtaining and weighing in the light of his knowledge and experience all relevant information as to the medical history and other facts indicative of the condition of the patient. We are considering obscure or hidden infections of the human body, not those that are on the surface, where their nature and causes may be demonstrable as facts. If anything relating to infections is of common knowledge it is that they often baffle the most skilled and experienced physicians. Anyone who has grown to maturity, paying some attention to his physical ailments and those of his acquaintances, has learned that a great deal of experimentation is indulged in, necessarily, in order to locate, identify and treat numerous types of infections in the human body. He may even know that it is not unusual to have teeth extracted upon the advice of competent physicians and dentists, purely by way of experiment, but as an intelligent effort to cure a stubborn infection, the cause of which is unknown.

The majority opinion essentially holds that the appearance of an infection after surgery warrants an inference that the surgeon was negligent. I cannot agree. I doubt that my associates realize to what strange ends the doctrine they announce would lead. It is trite to say that examination and treatment by the insertion of instruments into or through the natural openings of the body, or through wounds, is a necessary part of the practice of medicine and surgery. It is also elementary that infection is an insidious and dreaded enemy, and that great precautions are taken to prevent it. If it appears where a laceration has been repaired or a fracture reduced, or a tonsil removed or a throat or sinus examined or treated, is this a good reason for inferring negligence? If a patient develops a sore throat after having his temperature taken is it to be inferred that the thermometer was unsterile? If so, the practice of medicine and surgery would be a mixed profession and insurance business. A malpractice action would be little more than an order to the defendant to show cause why he should not pay damages. But I find no precedent for the theory upon which the majority opinion proceeds. Laymen have never been allowed to say in a malpractice action that there was negligence because, in their opinion, a better result would probably have been reached if there had been no negligence.

The line between the field of common knowledge and the field of special learning, knowledge and skill, from which expert testimony must be drawn, has been sharply defined and consistently maintained. Without discussion, I refer to the following decisions of our own courts. Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695, severance of a nerve during operation; Patterson v. Marcus, 203 Cal. 550, 265 P. 222, mistake in diagnosis as to pregnancy; Hall v. Steele, 193 Cal. 602, 226 P. 854, unsuccessful facial operation; Nicholas v. Jacobson, 113 Cal.App. 382, 298 P. 505; incorrect diagnosis and unsuccessful treatment; Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698, injury to sciatic nerve; Johnson v. Clarke, 98 Cal.App. 358, 276 P. 1052, removal of part but not all of kidney; Markart v. Zeimer, 67 Cal.App. 363, 227 P. 683, severance of artery and cord during operation; Pearson v. Crabtree, 70 Cal.App. 52, 232 P. 715; Houghton v. Dickson, 29 Cal.App. 321, 155 P. 128, cases of bone fractures. See, also, Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487 and note, cases of death under anaesthetic.

It was not only proper, but necessary that the jury be instructed that expert testimony was required to establish negligence on the part of the defendant. The instruction on expert testimony was a correct statement of the rule. Engelking v. Carlson, supra, 13 Cal.2d at page 221, 88 P.2d 695.

The majority opinion quotes at length from the opinion in Barham v. Widing, 210 Cal. 206, 291 P. 173, and says the present case is squarely within the holding in that case. I cannot agree.

A careful reading of the opinion in the Barham case will disclose that it held only this: That where it had been conclusively shown by expert testimony that Barham suffered an infection in his jaw at the exact place where the hypodermic needle had been inserted, and there was expert opinion evidence that the cause was an infected needle or solution, it was proper to instruct the jury that if they believed that the needle or the solution was unsterile, and as a proximate result thereof an infection was introduced into Barham's mouth, they could infer negligence or malpractice on the part of the defendant Widing. Certainly negligence may properly be inferred from the use of an unsterile instrument in a surgeon's or dentist's operating room. There was no contention made in the Barham case, much less a holding, that the jury could disregard the expert testimony in determining whether the infection had been proximately caused by the use of an unsterile needle or solution. Barham was relying upon the opinion of his expert that either one or the other was unsterile. The case is not authority for the holding of the majority opinion that the evidence of negligence of Dr. Belt was sufficient without the expert testimony.

The court did not err in refusing the instructions to the effect that expert testimony is not required to prove facts that are of common knowledge. Without amplification they would have left it to the jury to decide what facts are of common knowledge, which was a question for the court. The court gave the following instruction:

“If, and only in the event, you should find that plaintiff, H.T. Moore, sustained injury as the result of the introduction by defendant, Elmer Belt, or any of his agents or employees, of a new infection you are instructed as follows: An inference arises that the proximate cause of such injury was some negligence or malpractice on the part of the defendant, Elmer Belt, or his agents or employees. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict in favor of plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that the injury in question occurred without being proximately caused by any failure of duty on his part or on the part of any of his agents or employees.

“You are instructed that where an inference is permitted by law, that such inference is only a species of evidence, and where such inference is rebutted by clear, positive and uncontradicted evidence, then such inference is disspelled and disappears from the case.”

I think the instruction was erroneous in in several particulars but that question is not presented for our decision. Certainly it was more favorable to plaintiff than the ones that were refused, or the one that was given in Barham v. Widing. It not only authorized but directed the jury to infer negligence if a new infection was introduced during the examination. There was no requirement, as there was in the Barham case, that the jury must first determine that the infection was introduced by the use of an unsterile instrument or fluid. Under the instruction the jury could have found defendant guilty of negligence if it was believed that the infection was introduced during the examination, even though it was also believed that defendant had exercised the highest degree of judgment, care and skill. Neither the Barham case nor any other that I know of, is authority for the rule stated in the instruction. Appellant contends, and the majority opinion in effect holds, that if the jury had been instructed that expert testimony was not necessary to prove negligence, the verdict would probably have gone against the defendant. I think plaintiff very likely would have prevailed, and that the same might happen in any other case where it was proved that an infection occurred after surgery and the same issue was tried without expert testimony. That is my reason for dissenting. Decisions by laymen of scientific or technical matters in the field of the learned professions must have support in competent expert testimony.

The experts testifying for defendant expressed the opinion that his conduct met the requirements of due care, skill and judgment—the ultimate question. It was therefore proper to instruct as follows: “In determining the question of whether the defendant was guilty of negligence as alleged in the complaint you cannot and must not set up a standard of your own but must be governed in that regard solely by the testimony of expert witnesses who have appeared and testified in this case.” The evidence narrowed the issue to the question whether proper precautions had been taken to prevent infection. The methods of sterilization used by Dr. Belt were described in defendant's hypothetical questions and Dr. Webb assumed in giving his answers that the instruments had been sterilized. The jury, if it had accepted Dr. Webb's conclusions, could have found that either the instruments or the patient's body had not been properly sterilized. It could not have set up its own standard of sterilization or technique and concluded that the process followed by defendant, which was shown to be in accordance with approved practice, was inadequate, nor could it properly have concluded, from the mere occurrence of a hidden infection, and without supporting expert testimony, that there had been negligence in failing to procure proper sterilization.

There is an additional reason for rejecting the claim that it was error to give the instructions on expert testimony. Plaintiff offered the testimony of Dr. Webb for the purpose of proving that a new infection was introduced by defendant or his employees. Defendant was obliged to meet that expert testimony with the testimony of his own experts. The court was required to instruct on the issue to which the expert testimony was addressed. Plaintiff introduced and relied upon the theory to which the instructions related. I do not question that he had a right at the trial to contend that he had made out a case of negligence without the expert testimony, but upon principle and authority I do deny that he has a right to complain of the giving of instructions which were made necessary by the theory upon which his case was tried and the evidence upon which he relied. Shapiro v. Equitable Assur. Soc., 76 Cal.App.2d 75, 94, 172 P.2d 725; Sommer v. Martin, 55 Cal.App. 603, 610, 204 P. 33; 5 C.J.S., Appeal and Error, § 1507, p. 210. See, also, Carpenter v. Ewing, 76 Cal. 487, 488, 18 P. 432; Abbott v. Cavalli, 114 Cal.App. 379, 384, 300 P. 67.

I am of the opinion that the court could very properly have allowed more latitude of examination in the qualification of Dr. Webb, and also that he should have been permitted to answer the hypothetical question put to him in rebuttal. But he had already given a comprehensive resumé of his entire professional career of some forty years, and had stated his expert opinions fully in answer to plaintiff's hypothetical question. After reviewing the entire record I am satisfied that the limitation of the examination of Dr. Webb was not an abuse of the court's discretion, and that there is no merit in the other assignments of error.

I think the judgment should be affirmed.

SHINN, P.J., dissenting.